Legal Lawlessness

by Donald Devine - May 28th, 2008 - The American Conservative Union Foundation

The first principle of the English jurisprudence from which American law evolved is that everyone is subject to the law, king, commons and courts. The philosopher who most influenced both, John Locke, defined real law as “established, settled, known law, received and allowed by common consent to be the standard of right and wrong and the common measure to decide all controversies between them.” It is set by a representative legislature that "neither must or can transfer the power of making laws to anybody else." The whole point of a rule of law is that it is based on the settled, common beliefs of the people and their legislature, not to be invented by judges—or anyone else--as fashion dictates.

This view of law as based on common beliefs was uncontested in America until the early 20th Century, when it was challenged by the legal-positivist progressives under the leadership of Oliver Wendell Holmes Jr., the most influential jurist of “law without values” utilitarianism, Malthusian economics, state-regulated eugenics and compulsory sterilization, and judicial supremacy. Substituting expert pragmatism for common consent, progressivism is forced to create positive law on every subject based on the specific facts of every case, unguided by tradition or common morality. As Nobel laureate F.A. Hayek, following Locke, demonstrated, this violates the rule of law because law must have general rules that all people in general circumstances can understand beforehand. Progressivism even at its best produces too many rules for people to follow. There is a law on everything so that no one can know the tax code, business regulations or even the criminal law so no one can understand and follow them. At its worst, progressivism produces so many conflicting rules on so many specifics that the laws produce nonsense.

It is truly sad that America today has abandoned the best court system that ever existed for a system defined by a man who believed in the right of the state to determine who could breed. If Olver Wendel Holmes Jr. had his way, blacks would not be permitted to breed. Yet blacks overwhelmingly support the kind of law this man directed. How can this be a sane reaction to an insane system?

Our courts are a joke. We have abandoned the rule of law and replaced it by the rule of Judges.